Jeffrey Gale, a Kingston, Ont., eye surgeon, is to be stripped of his medical license as a sexual abuser, now that a discipline committee has found he had a sexual affair with a patient he hired as a live-in nanny.

The potentially career-ending judgment — split three against two — follows a pitched battle over credibility, with Dr. Gale’s defence portraying the nanny as a vindictive employee who, after being fired and refused a demand for $50,000, colluded with her own mother to frame him. Dr. Gale flatly denied any sex occurred at all.

Since 1993, the College of Physicians and Surgeons of Ontario has taken a zero-tolerance policy that regards any sexual contact — the law includes a list of the various acts — between doctor and patient to be de facto abuse, because of the presumed power differential. It has been controversial in many cases, including the treatment of spouses.

To prove or disprove the alleged sex, salacious details were presented by both sides to the College’s discipline committee, including photographs of Dr. Gale’s third nipple and scarred scrotum; a rag doll in his likeness, complete with genitals, made by the nanny’s mother; a Barbie hung by her neck; and unproven allegations of email hacking.

Only when you realized you had been caught in a lie red-handed, did you admit you made that card

There was also a dramatic reversal of fortune during the hearing last winter, after Dr. Gale admitted — after first denying — he made a crudely sexual Valentine’s card for the nanny’s mother, addressing her as a “GILF,” or a “Grandmother I’d Like to F—.”

“Only when you realized you had been caught in a lie red-handed, did you admit you made that card, Dr. Gale,” said College prosecutor Lisa Spiegel.

“I found it funny to make,” he testified. But his initial denial diminished his credibility, the tribunal ruled.

The card followed on jokes between Dr. Gale, 44, and the nanny, 30, which was part of a “flirtatious and personal relationship [that] evolved into much more, just as Ms. X testified it did,” the tribunal wrote.

The tribunal rejected the defence position that she was lying out of revenge. Rather, it “believes that she was motivated by a desire to see justice served.”

Crucially, the tribunal found they engaged in a sexual affair while he was still treating her eyes, including five laser treatments, nine intravitreal injections, and two surgeries, over a total of 20 visits.

Dr. Gale’s lawyer Wayne Brynaert said the ruling will be appealed.

Meanwhile, a penalty hearing is to be held at the “earliest opportunity,” according to the judgment. According to the zero-tolerance policy, the sexual abuse finding is grounds for automatic revocation of Dr. Gale’s medical license.

He was also found guilty of disgraceful, dishonourable or unprofessional conduct, apart from the sex, for hiring a patient as a nanny and engaging in an “inappropriate relationship” that also included taking hot tubs alone together.

“He first denied to his lawyer that he had made the inappropriate … valentine sent to [the complainant’s mother] but then subsequently admitted this to be an example of the sexualized humour he used,” they wrote. “His mortification at his own behaviour was self-serving and beyond belief. Dr. Gale’s cavalier attitude towards boundary issues with a patient is absolutely astounding.”

His mortification at his own behaviour was self-serving and beyond belief

The decision was split, however, and two of five panel members were surprised at the lack of corroborating evidence for such an elaborate affair, in which they were supposedly having sex in the basement of the family home the morning before he operated on her, with Dr. Gale’s wife and the nanny’s mother asleep upstairs with the children. They found the nanny’s testimony “had a quality of being rehearsed,” and that her memory of certain events was so weak it “marred her credibility.”

The minority also found Dr. Gale evasive, dishonest and self-serving, but were not convinced by the sexual abuse charge, though they accepted the broader misconduct charge.

The majority was similarly skeptical of the nanny, finding her memory loss “convenient at times,” but believed her “on a balance of probabilities.”

Both stories, defence and prosecution, seemed far fetched when the hearing began almost a year ago. Dr. Gale put it like this on the witness stand: “One must be lying.” As it turned out, the tribunal decided it was him.

The nanny has serious eye problems related to early onset diabetes, for which she has had a kidney transplant.

In 2007, she was referred to Dr. Gale, who found her eyes significantly undertreated. Her boyfriend was moving to California, and she was looking for nanny work. After he made the introduction, Dr. Gale’s wife hired her part time, then full time, and by the fall, she was living in their basement, taking care of their two boys, then one and seven.

He was also treating her with injections, paid for out of the budgets of either the hospital or his own corporation.

Dr. Gale earned a medical degree from the University of Ottawa in 1998, then did a residency at Western and a fellowship in Toronto, before working at Hotel Dieu Hospital in Kingston.

One night at about 2:00 a.m. in May, 2008, as the panel accepted, Dr. Gale came to the nanny’s basement bedroom, and, as she testified, he “woke her up saying her name, rubbed her hair and kissed her on the lips and forehead and told her he loved her and had been falling in love for months, was unhappy with his wife, wanted to leave her and wanted to be with Ms. X.”

In time, the nanny testified she fell in love too, and he was going to her almost every night, while his wife, who was chronically ill, was upstairs, according to the judgment.

Professional misconduct rulings of this sort are appealed to Ontario’s Divisional Court.

For all the baffling distractions at the sexual abuse tribunal hearing of Kingston eye surgeon Jeffrey Gale (such as the third nipple, the rag doll’s penis, the “Barbie cemetery,” the hacked email and the diet book torn to shreds), one thing was strikingly plain and obvious.

Someone is lying.

It is either Dr. Gale, who denies allegations of a sexual affair with the young female patient he hired as a nanny and continued to treat even after (indeed, mere minutes after) having sex with her in the basement nanny suite, with his wife and kids upstairs.

He has yet to testify, but his defence is the nanny has made up a “fantastic story” to ruin his career and family out of an “overwhelming desire to seek revenge” for being fired. He claims after he refused her demand for $50,000 in severance, she told his young son about a “Barbie cemetery” she kept and gave him a Barbie doll that was later found hanging by its neck from a noose.

Or it is the nanny, now 29, who has been on the witness stand for two days, under intense cross-examination.

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The woman described how she fell in love with her surgeon after moving in with his family, and he with her, to the extent he planned to divorce his wife, but changed his mind. She claims her email account was hacked and all Dr. Gale’s romantic notes to her were deleted. She has no other direct proof.

Dr. Gale’s medical career hangs on whom the five-person discipline panel of the College of Physicians & Surgeons of Ontario (CPSO) believes. Sex between a doctor and patient, even consensual, is de facto sexual abuse under Ontario law because of the presumed power differential.

What is common ground is that in 2007 the woman, a lifelong diabetic (she recently had a kidney transplant), was referred to Dr. Gale just as her boyfriend was moving to California, and she was looking for nanny work. Dr. Gale’s wife hired her part time, then full time, and by the fall of 2007, she was living in their basement, taking care of their two boys, then one and seven.

Dr. Gale performed free laser treatments, injections and surgery on the nanny’s eyes until he fired her the following summer, and transferred her care to another doctor.

“It was very casual. It was very fun. I had a great friendship with both Jeff and [his wife],” the nanny testified.

‘He was one of my best friends and I loved him. I didn’t realize at that point that I was in love with him. I know he wanted the best for me’

They all bonded as smokers, taking breaks in the garage, but it was Dr. Gale she got along with best, watching movies together at night, or shows like South Park, smoking marijuana, and hot tubbing in the backyard, which she said was neither secretive nor sexual. There was always some flirtation, the way they would joke and poke at each other, but she had no other intentions.

“We just found the same things funny,” she said.

Over time, the nanny testified it became clear the wife was sick, physically and mentally, with constant headaches, signs of Crohn’s, a massive appetite for pills and no affection or time for the boys.

The firing appears to have been prompted by the nanny’s raising of these concerns, including suicide, with a neighbour friend of the wife.

“There was always something medically wrong with her,” the nanny said. The wife, who is expected to testify, “seemed to be overwhelmed by everything, she was always stressed and miserable.”

Increasing flirtation with Dr. Gale on a family holiday Florida — she flashed him during a playful shopping trip to Walmart, and claims he tried to take off her bikini top in a pool at night — came to a crisis when they got back, she testified. He came to her room late at night, crying and saying he was in love and confused, and she “ended up performing oral sex on him.”

She described his body, his hairy chest and circumcision, but said nothing about the third nipple Dr. Gale’s lawyer claims he has, nor the scar on his testicles from an injury as an infant.

“I couldn’t believe what had just happened. I felt guilty, because I had a boyfriend, because he was married, because it was against everything that I morally believe in,” she testified.

Later that day, after a scheduled eye appointment, she said they performed oral sex on each other in his office at Hotel Dieu hospital in downtown Kingston.

“He was one of my best friends and I loved him. I didn’t realize at that point that I was in love with him. I know he wanted the best for me, for my eye care, for my health,” she said. “It was private. We were having an affair. We talked about how people couldn’t know, we couldn’t tell anyone.”

‘I couldn’t believe what had just happened. I felt guilty, because I had a boyfriend, because he was married’

She did tell a friend in Edmonton by email, in lurid detail. There were legal arguments about whether that proves anything.

“He was coming down to my room almost nightly, always after his wife and the kids had gone to bed,” the woman said.

A curious aspect of the case is the role played by the nanny’s mother, who told a CPSO investigator Dr. Gale was “charismatic” and “perfect,” and made him a Christmas present of a rag doll in his likeness, with hospital scrubs, glasses, cloth penis and plastic purple testicles.

The mother, who will testify, plays a central role in a strange episode — which Dr. Gale denies — in which the nanny and her mother, who was visiting for the night, were sleeping in the basement, when he came down and said his wife was having trouble with the sick baby.

Dr. Gale needed sleep, because he was to perform surgery on the nanny the next day, and so, as the nanny put it, “it was decided” Dr. Gale would sleep with the nanny, and the nanny’s mother would go help with the baby.

The nanny testified she remembers nothing of the wife’s reaction the next morning, when she came to the nanny suite to wake the husband up —interrupting the oral sex she claims they were having.

Dr. Gale then drove the nanny to the hospital, she testified, where he operated on her left eye.

Ontario’s unique zero tolerance policy on sexual abuse by physicians will be put to the test once again on Monday, in the unusual case of a Kingston ophthalmologist whose patient became his live-in nanny, and with whom he is alleged to have had a sexual affair.

Jeffrey Gale, a long-time eye specialist and teacher at the city’s Hotel Dieu Hospital, stands to lose his medical licence if convicted of sexual abuse at a discipline tribunal of the College of Physicians and Surgeons of Ontario. He is also charged with disgraceful, dishonourable or unprofessional conduct. Typically used against doctors who fondle their patients under the guise of exams, pressure them into sexual acts or make inappropriate sexual comments, the zero tolerance sexual abuse law has been criticized as blunt and overly strict, as it gives regulators no discretion to forgive consensual relationships.

Dr. Gale’s lawyer, Wayne Brynaert, said there will be no plea deal, and that Dr. Gale will contest the charges “absolutely.” The College has scheduled two weeks for the hearing, in which the alleged victim will likely testify.

The tribunal is likely to focus on the question of whether the nanny was still Dr. Gale’s patient when the alleged affair began. This question is not always easily answered, and the College’s advice to doctors is ambiguous. It states that if a doctor provides something as personal as psychotherapy, then sex with that patient is likely inappropriate at any time. “However, if a physician saw a patient on one or two occasions to provide routine clinical care, it may not be inappropriate to have a sexual relationship with the former patient within a short time following the end of the physician-patient relationship,” it says. It is not yet known what medical treatment Dr. Gale provided the nanny, or when it stopped.

First enacted with all-party support in the 1990s, the zero tolerance law has been upheld on judicial review, though it has led to some bizarre situations, such as a physician whose career hung on the question of whether he encouraged or merely permitted a woman to masturbate in his office (the outcome was an evenly split discipline panel, so his licence was saved).

The stakes for Dr. Gale are similarly high. Because the College alleges intercourse and oral sex occurred, a finding of guilt would mean revocation of his medical licence. Consent is not a defence because of the presumed power differential between doctors and patients.

A key legal worry is that the law effectively bans doctors who treat their spouses from having sex with them. This can be problematic in remote areas with only one doctor, according to the Health Professions Regulatory Advisory Council, which supports the spousal exemption that has been proposed by Ontario’s health ministry but has not been enacted. The exemption is opposed by the CPSO, which fears it would “fundamentally undermine” the zero-tolerance philosophy, and bog down prosecutions with arguments about whether a relationship was spousal.

Kevin Van Paassen/National Post filesThe College of Physicians and Surgeons of Ontario.

Dr. Gale’s case is believed to be the first about sex with a nanny, though it raises comparable questions about whether this alleged affair was any of the regulator’s business. The alleged victim, identified as Patient A, became Dr. Gale’s patient in 2007, according to his notice of hearing, which does not specify whether Patient A is a man or woman.

“After the commencement of their doctor/patient relationship, Patient A became employed by Dr. Gale’s family as their ‘nanny’ or child-care provider. As an employee, Patient A moved into Dr. Gale’s home,” the notice reads. “During the course of Patient A’s employment with Dr. Gale and during their doctor/patient relationship, Patient A and Dr. Gale commenced a sexual relationship which included acts of sexual intercourse and oral sex.”

Marilou McPhedran, who chaired the task forces that led to the zero-tolerance law, said she recently wrote to Ontario’s health ministry to urge caution over a spousal exemption. “In that letter I just reminded [the minister] that the primary purpose of the [law] is the protection of patients and public safety, and that if there was going to be a spousal exemption, it would be crucial to be very clear about the definitions and the boundaries,” said Dr. McPhedran, the principal of University of Winnipeg Global College, currently on sabbatical in Costa Rica. Otherwise, such exemptions can become “another means of sexual exploitation, to shelter under it long enough for their gratification, and long enough for serious damage to be done,” she said.

The complaint against Dr. Gale originated with the College’s Inquiries, Complaints and Reports Committee, which suggests it came from a member of the public, but it is not yet clear who.

In 2008, Dr. Gale won an excellence in teaching award for his work with medical students at Hotel Dieu Hospital. He went to medical school at the University of Ottawa, graduating in 1998, with post-grad training at the University of Western Ontario.